Relying on disclaimers and small print

Your business cannot rely on disclaimers and small print as an excuse for misleading or deceptive conduct.

Example – relying on disclaimers and small print

A large department store engaged in misleading conduct when it advertised '25 per cent off all clothing' but in small print excluded certain clothing and stated '15-40 per cent off house wares'. A court found this to be misleading conduct.

Legal reference: ACCC v Target Australia Pty Ltd [2001] FCA 1326

However, consumers cannot ignore disclaimers. Prominently displaying disclaimers may be enough to protect a business, depending on the circumstances.

Example - prominently displaying disclaimers

A bank advertises low credit card interest rates for the first 12 months. The advertisement clearly indicates the low rates are only available to new customers who apply within a certain period. This disclaimer is sufficient because it clearly informs consumers about the terms and conditions.

Predictions and opinions

A statement about the future that does not turn out to be true is not necessarily misleading or deceptive.

But promises, opinions and predictions can be misleading or deceptive if the person making the statement:

knew it was false

did not care whether it was true or not

had no reasonable grounds for making it.

Example – predictions and opinions

A real estate agency was selling apartments with a view of the sea.

The agency assured prospective buyers that the view was protected because the land between the apartment block and the sea was zoned for low-rise development. This was based on information provided by a council officer.

However, the council officer was wrong. The zoning was about to change, allowing high-rise development. The agency had made a false statement about a future matter but had reasonable grounds, so was not liable for misleading consumers.

Legal reference: (2009) 17 TPLJ 25

A court will consider the circumstances and the effect or impact on the consumer when deciding if a prediction or opinion was misleading or deceptive.